Ninth Circuit Judge Says Courts Weaponize Single Footnote Against Gun Rights
Lower courts are using Footnote Nine from the Supreme Court's Bruen decision to uphold gun restrictions they shouldn't. A Ninth Circuit judge recently called out this legal sleight of hand, arguing courts are reading the footnote backward to achieve predetermined results favoring gun control.
The Bruen decision itself recognized that certain gun regulations can survive Second Amendment scrutiny—but only if they fit within historical tradition. Footnote Nine addresses this historical test. Courts are now treating that footnote as a blank check to approve modern gun laws without serious historical analysis.
Why It Matters for Gun Owners
This matters because gun owners face increasing legal uncertainty when fighting state and federal restrictions. If courts can invoke a single footnote to sidestep rigorous constitutional review, your legal challenges become uphill battles regardless of merit.
The pattern is clear: a state passes a gun law. Gun rights groups sue. Lower courts cite Footnote Nine, claim it permits the restriction, and reject the challenge without examining actual historical precedent. The Supreme Court's original intent—requiring judges to examine whether modern regulations align with founding-era traditions—gets lost.
For daily carriers and gun owners, this means permits get denied. Magazine limits stay in place. Carry restrictions survive challenge. Courts essentially skip the constitutional analysis you paid lawyers to argue.
The Ninth Circuit judge's criticism signals a potential correction coming. If appellate courts start enforcing Bruen properly, lower court decisions could reverse. Cases already decided might return to trial courts for real historical analysis.
Background
The Supreme Court's June 2022 Bruen decision struck down New York's restrictive carry permit law and established a new constitutional test for gun regulations. Instead of the previous multi-factor balancing test, Bruen required courts to ask: Did the founding generation regulate this type of firearm or conduct this way?
Footnote Nine addressed exceptions. The Court noted that certain longstanding regulations—like firearm restrictions for felons and the mentally ill—might survive scrutiny based on historical tradition. The footnote wasn't a license for modern regulations. It was a narrow recognition that genuinely historical restrictions could apply to modern guns.
What happened next was predictable. Lower courts read Footnote Nine as permission to uphold almost any gun law if judges deemed it "longstanding" or "common sense." They skipped the hard work: actual historical research. A judge could simply note that magazine limits are "modern" and thus outside Second Amendment protection. Problem solved.
The Ninth Circuit judge's opinion identifies this methodological failure. Courts aren't applying Bruen. They're using Footnote Nine as a shortcut to ignore Bruen entirely.
DownRange Bottom Line
Gun owners need appellate courts to enforce Bruen as written. A footnote shouldn't become a loophole that lets judges ignore constitutional requirements. If the Supreme Court required historical analysis, lower courts must do it—not cite a footnote and move on.
This Ninth Circuit criticism might signal momentum toward proper Bruen application. But don't expect quick changes. Lower courts operate with institutional incentives to uphold gun laws. Without sustained pressure from appellate review, Footnote Nine will remain a convenient excuse to deny gun rights.
Stay vigilant. Challenge restrictions in states where appellate courts show signs of actual Bruen compliance. Avoid courts notorious for footnote-based dismissals until appellate pressure forces correction.
